Full Opinion

11/04/2026 DA 24-0560 Case Number: DA 24-0560 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 260 STATE OF MONTANA, Plaintiff and Appellee, v. DONALD PAUL ROGERS, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 23-188 Honorable Howard F. Recht, Presiding Judge COUNSEL OF RECORD: For Appellant: Tammy A. Hinderman, Appellate Defender Division Administrator, Kristen L. Peterson, Assistant Appellate Defender, Helena, Montana For Appellee: Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant Attorney General, Helena, Montana William Fulbright, Ravalli County Attorney, Hamilton, Montana Submitted on Briefs: June 24, 2026 Decided: November 4, 2026 Filed: __________________________________________ Clerk Justice Katherine M. Bidegaray delivered the Opinion of the Court. ¶1 Donald Paul Rogers (Rogers) appeals the July 26, 2024 final judgment of the Twenty-First Judicial District Court, Ravalli County. We address the following issues: 1. Whether the District Court erred by admitting Rogers’s blood-test result when a certified phlebotomist drew his blood at the detention center and testified that a registered nurse provided “distant” supervision of his phlebotomy work. 2. Whether the State presented competent proof of Rogers’s disputed 1995 DUI conviction. 3. Whether Rogers must be resentenced in light of our disposition of the predicate conviction in DA 24-0252. 4. Whether the written judgment must be corrected to award the proper credit for time served and lawful statutory surcharges, and whether the District Court lacked statutory authority to impose the audit-hearing provision as part of Rogers’s sentence. ¶2 We affirm Rogers’s convictions and the District Court’s determination that the State presented competent proof of the 1995 DUI conviction. Because the predicate conviction in DA 24-0252 has been reversed, however, we reverse Rogers’s sentence and remand for resentencing under § 61-8-1008(1), MCA. On remand, the District Court shall award all credit for time served required by law, including at least the 291 days it orally awarded and impose only the statutory surcharges authorized by § 46-18-236, MCA. We further hold that the District Court lacked statutory authority to include the audit-hearing provision as part of Rogers’s sentence and direct the District Court not to reimpose that provision on resentencing. 2 FACTUAL AND PROCEDURAL BACKGROUND ¶3 On September 16, 2023, Montana Highway Patrol Trooper Patrick Heaney (Heaney) stopped Donald Paul Rogers (Rogers) on U.S. Highway 93 after his radar gun clocked Rogers driving his motorcycle at 92 miles per hour in a 65-mile-per-hour zone. Heaney learned that Rogers lacked a motorcycle endorsement. When Heaney approached Rogers more closely after backup arrived, Heaney smelled alcohol on Rogers’s breath. Rogers admitted to drinking a few beers two hours earlier, and Heaney observed that Rogers slurred his words. Because Rogers was limping, Heaney did not administer field sobriety tests. Based on his observations and Rogers’s speeding, Heaney arrested Rogers for driving under the influence and transported him to the Ravalli County Detention Center. ¶4 At the detention center, Heaney read Rogers the implied-consent advisory. Rogers refused to provide a blood sample, so Heaney applied for a search warrant. Justice of the Peace Jennifer Ray approved the warrant. Certified phlebotomist Chris Colgan (Colgan), who also served as a Ravalli County Sheriff’s Deputy, drew Rogers’s blood while Heaney observed. Colgan sealed and packaged the sample, which Heaney refrigerated before another trooper transported it to the Montana State Crime Lab. ¶5 On September 29, 2023, Crime Lab toxicologist Elizabeth Holom-DeYoung (Holom-DeYoung) tested Rogers’s blood. She testified that the seals were intact and the identifying information was correct. The toxicology report showed a blood-alcohol concentration of 0.136. The State filed an Information that day charging Rogers with driving under the influence of alcohol, fourth or subsequent offense, and related misdemeanors. On March 11, 2024, the State filed a First Amended Information charging 3 Rogers with operation of a vehicle with a blood-alcohol concentration of 0.08 or more, in violation of § 61-8-1002(1)(b), MCA, and the related misdemeanors. ¶6 At trial, after Heaney testified but before the State offered the toxicology report, defense counsel moved to exclude the blood-test evidence. Counsel argued that the State had not satisfied § 61-8-1019(1), MCA, because no physician or registered nurse was present for the draw. The District Court denied the motion, reasoning that neither the statute nor controlling precedent required a physician or registered nurse to observe the blood draw directly. ¶7 The State then called Colgan who testified that he was a certified phlebotomist, had completed 82 hours of training, and had performed approximately 70 DUI blood draws. Colgan explained the standard blood-collection procedure and testified that he followed it when he drew Rogers’s blood. He further testified that “I'm supervised, as far as overseen by, a registered nurse.” Colgan named Tiffany Webber (Webber), the Ravalli County Director of Public Health, as his supervisor but acknowledged that Webber was not present for the draw, had never attended one of his DUI blood draws at the detention center, and provided what he described as “more of a distant supervision.” The jury found Rogers guilty of operation of a vehicle with a blood-alcohol concentration of 0.08 or more and the related misdemeanors. ¶8 At the initial sentencing on June 5, 2024, Rogers disputed the description of his prior convictions in the presentence investigation report (PSI). The PSI listed a 1995 Missoula DUI as “Pending,” while defense counsel stated that a National Crime Information Center (NCIC) record provided in discovery showed Rogers convicted of that offense. Defense 4 counsel maintained that Rogers had not been charged with or convicted of the 1995 DUI and also identified asserted inaccuracies in unrelated portions of the NCIC record. The State was not prepared to present evidence addressing those objections, so the District Court continued sentencing. On June 19, 2024, the State filed a response attaching the NCIC record, Rogers’s certified driving record, an explanatory spreadsheet, and a letter from the PSI author acknowledging omissions in the PSI. ¶9 At the continued sentencing hearing on July 3, 2024, defense counsel maintained that the State had proved, at most, the predicates necessary to treat the present offense as a fourth offense. Defense counsel represented that Missoula Municipal Court had no record of a 1995 conviction. The State relied on the NCIC record and on Rogers’s certified driving record, which identified the 1995 matter as a DUI conviction, and argued that those records constituted competent proof under State v. Letherman, 2023 MT 196, 413 Mont. 459, 537 P.3d 862. The District Court found the present offense was “at least a fifth offense,” based on prior convictions in 1995, 2005, 2008, and 2024. It sentenced Rogers under § 61-8- 1008(2), MCA, to ten years in prison, with two years suspended, orally awarded 291 days of credit for time served, and imposed a $5,000 fine, all suspended. The written judgment awarded 201 days of credit, imposed total statutory surcharges of $530, and required Rogers to appear for an audit hearing in 2033. STANDARD OF REVIEW ¶10 We review a district court’s evidentiary rulings for abuse of discretion. State v. James, 2022 MT 177, ¶ 9, 410 Mont. 55, 517 P.3d 170. A court abuses its discretion when it acts arbitrarily, without conscientious judgment, or exceeds the bounds of reason, 5 resulting in substantial injustice. James, ¶ 9. To the extent an evidentiary ruling depends on statutory interpretation, our review is de novo for correctness. James, ¶ 9; State v. Merry, 2008 MT 288, ¶¶ 12-13, 345 Mont. 390, 191 P.3d 428. ¶11 Whether a prior conviction may be used to enhance a criminal sentence presents a question of law that we review de novo for correctness. State v. Holder, 2020 MT 61, ¶ 7, 399 Mont. 214, 459 P.3d 1282. We review the District Court’s underlying factual findings for clear error. Holder, ¶ 7. ¶12 We review a criminal sentence for legality, determining whether it falls within statutory parameters. State v. Cole, 2026 MT 52, ¶ 5, 427 Mont. 64, 585 P.3d 955; State v. Yeaton, 2021 MT 312, ¶ 8, 406 Mont. 465, 500 P.3d 583 (internal citation omitted). Whether the sentencing court adhered to the applicable sentencing statute presents a question of law that we review de novo. State v. Kalina, 2025 MT 70, ¶ 53, 421 Mont. 305, 567 P.3d 270; State v. Dowd, 2023 MT 170, ¶ 6, 413 Mont. 245, 535 P.3d 645. DISCUSSION ¶13 1. Whether the District Court erred by admitting Rogers’s blood-test result when a certified phlebotomist drew his blood at the detention center and testified that a registered nurse provided “distant” supervision of his phlebotomy work. ¶14 The State established that Colgan was qualified to draw blood and presented sufficient evidence that he acted under supervision and direction of a registered nurse. Section 61-8-1019(1), MCA, does not require the supervising physician or registered nurse to remain physically present or observe the blood draw directly. The detention-center location likewise did not render the draw unlawful. We therefore affirm the District Court’s admission of the blood-test result. 6 Supervision and Direction ¶15 Section 61-8-1019(1), MCA, allows three separate categories of people who may draw blood at a peace officer’s request: licensed physicians, registered nurses, and other qualified persons acting under the supervision and direction of a physician or registered nurse. The statute thus requires the State to establish both that the person was qualified and that the person acted within the required supervisory relationship. Rogers argues that remote supervision by an offsite public-health RN is not adequate supervision as deemed necessary under the statute. But the statute does not require the supervising physician or registered nurse to remain physically present to provide the required supervision and direction. In Merry, an LPN drew blood at a health center while a registered nurse and a physician assistant were on call but not physically present. Merry, ¶ 7. The health center permitted LPNs who had demonstrated “competency” to draw blood without a registered nurse present. Merry, ¶¶ 7, 23-26. We held that this general, offsite level of supervision and direction satisfied the statute. Merry, ¶¶ 19, 26. We reached a similar conclusion in State v. Allport, where a medical technologist worked in a hospital laboratory that had a direct supervisor and was supervised by an offsite physician. State v. Allport, 2015 MT 349, ¶¶ 5, 16, 382 Mont. 29, 363 P.3d 441. ¶16 Colgan’s certification as a phlebotomist, 82 hours of training, experience performing approximately 70 DUI blood draws, and testimony that he followed the standard blood-collection procedure established that he was qualified to draw Rogers’s blood. The State’s evidence concerning the separate supervision-and-direction requirement was thin. Colgan nevertheless testified that Webber, a named registered nurse 7 and county public-health director, supervised or oversaw his phlebotomy work and he characterized that supervision as “distant.” Section 61-8-1019(1), MCA, does not prescribe the required proximity, frequency, or form of supervision and direction. Under the circumstances presented here, Colgan’s testimony established the supervisory relationship the statute requires. Merry, ¶¶ 19, 23-26; Allport, ¶¶ 14, 16. We hold only that the evidence in this record satisfied § 61-8-1019(1), MCA. Certification or qualification alone would not satisfy the separate statutory requirement that the person act under the supervision and direction of a physician or registered nurse set forth in § 61-8-1019(1), MCA. Location of Blood Draw ¶17 That Colgan drew Rogers’s blood at the detention center does not alter the result. Section 61-8-1019, MCA, does not limit where the blood draw may take place, and the jail location does not itself make the draw unlawful. In State v. Heath, we rejected the defendant’s challenge to a blood draw conducted at a jail rather than in a traditional medical facility because the materially identical former statute did not limit where a qualified person could conduct a blood draw.1 State v. Heath, 2018 MT 318, ¶ 38, 394 Mont. 41, 432 P.3d 141. Because the State established that Colgan was a qualified person who acted under the supervision and direction of a registered nurse, the District Court did not err when it admitted Rogers’s blood-test result. 1 Section 61-8-405(1), MCA, referenced in Heath, was repealed effective on January 01, 2022, but the current statute, § 61-8-1019, also does not limit where a blood draw may take place. 8 ¶18 2. Whether the State presented competent proof of Rogers’s disputed 1995 DUI conviction. ¶19 When the State seeks an enhanced sentence based on a prior conviction, it bears the initial burden to present competent proof that the defendant suffered the conviction. Letherman, ¶ 9 (citing State v. Krebs, 2016 MT 288, ¶ 19, 385 Mont. 328, 384 P.3d 98). A disputed PSI does not satisfy that burden by itself. Letherman, ¶¶ 11-12. The State may demonstrate the underlying proof through an NCIC record, a certified driving record, or a prior judgment of conviction. Letherman, ¶¶ 10-14. Once the State presents competent proof, a presumption of regularity attaches to the prior conviction, and a defendant must present “direct evidence of irregularity” to overcome it. Holder, ¶¶ 4, 10, 12-13 (quoting State v. Mann, 2006 MT 33, ¶ 15, 331 Mont. 137, 130 P.3d 164 (citing State v. Snell, 2004 MT 334, ¶ 25, 324 Mont. 173, 103 P.3d 503)); State v. Okland, 283 Mont. 10, 18, 941 P.2d 431, 436 (1997). ¶20 Rogers’s objection rendered the PSI insufficient standing alone, but the State did not rely on the PSI alone. After the District Court continued sentencing, the State filed Rogers’s certified driving record, which identified the August 14, 1995 Missoula Municipal Court matter as a DUI conviction. Under Letherman, a certified driving record may constitute competent proof that a prior conviction occurred. We agree with that reasoning and hold that Rogers’s certified driving record, which expressly identified the August 14, 1995 matter as a DUI conviction, satisfied the State’s initial burden here. We need not decide whether the NCIC record independently contained a sufficiently clear disposition. 9 ¶21 Rogers identified legitimate reasons to scrutinize the State’s records. The PSI listed the 1995 matter as “Pending,” the PSI author acknowledged other omissions, and Rogers pointed to asserted inaccuracies in unrelated portions of his criminal history. Defense counsel also represented that Missoula Municipal Court had no record of the 1995 conviction. Rogers, however, produced no clerk’s certification, certified docket, dismissal or vacatur order, expungement order, testimony from a court custodian, or other evidence directly contradicting the disposition shown in the certified driving record. Defense counsel’s representation, unaccompanied by a clerk’s certification or other supporting court record, that the court could not locate a record of the nearly three-decade-old conviction did not establish that the conviction never occurred. The “Pending” notation in the PSI demonstrated that the PSI was unreliable on that point; it did not establish that the certified driving record was wrong. The unrelated criminal-history entries and numerical label assigned to a later DUI likewise did not constitute direct evidence that the 1995 conviction did not occur. The PSI error showed the PSI was unreliable; it did not establish that the NCIC and certified driving record were wrong about the 1995 conviction. ¶22 Further, Rogers argues that the reference to an NCIC record or certified driving record in Letherman was dicta because the State produced neither record there. He also asks us to overrule Holder, contending that its presumption-of-regularity framework should apply only to collateral constitutional attacks on prior convictions. Even assuming the statement in Letherman was not necessary to its judgment, Holder directly held that an NCIC entry reporting a disposition of “convicted” constituted competent proof that the conviction occurred and then applied the presumption of regularity. Holder, ¶¶ 4, 12-13. 10 We decline Rogers’s invitation to overrule Holder. Neither Holder nor our holding today makes an NCIC record or certified driving record categorically conclusive or irrebuttable. Such records may satisfy the State’s initial burden, subject to contrary direct evidence. ¶23 Krebs does not require a different result. The record there did not establish whether a prior North Dakota DUI conviction was an impairment-based DUI or a BAC offense, a legally dispositive distinction because if the conviction was a BAC conviction, it would not qualify for enhancement since the law applicable to that conviction required its expungement under the circumstances presented. Krebs, ¶¶ 4, 13, 19-20. Here, the certified driving record identifies the 1995 offense as a DUI conviction; Rogers’s objections did not present a comparable ambiguity about the nature of the offense. Rogers also disputes an alleged 2003 DUI conviction, but we need not decide whether the State adequately proved it. The District Court relied on the 1995, 2005, 2008, and 2024 convictions, not the alleged 2003 conviction, when it imposed the sentence. We hold narrowly that the certified driving record constituted competent proof of Rogers’s disputed 1995 DUI conviction and that Rogers did not present direct evidence requiring the District Court to reject it. We therefore affirm the District Court’s determination that the 1995 conviction occurred. ¶24 3. Whether Rogers must be resentenced in light of our disposition of the predicate conviction in DA 24-0252. ¶25 Section 61-8-1008(2), MCA, authorizes the increased fifth-offense penalty only when the defendant has four or more prior qualifying convictions and “was previously sentenced under subsection (1)(a)(i) or (1)(a)(ii).” In State v. Bloomer, we held that the 11 statute requires a defendant to have been sentenced for a fourth DUI before a court may impose the increased penalty under § 61-8-1008(2), MCA. State v. Bloomer, 2025 MT 93, ¶¶ 12-14, 421 Mont. 481, 568 P.3d 513. ¶26 The District Court relied on the 2024 conviction and sentence arising from Rogers’s 2022 offense in DC 22-62 to satisfy § 61-8-1008(2), MCA’s requirement that Rogers previously had been sentenced under subsection (1). In a companion opinion issued concurrently in DA 24-0252, we affirm that conviction and sentence. Because the predicate fourth-offense conviction and sentence remain valid, Rogers continues to satisfy § 61-8-1008(2), MCA’s requirement that he previously have been sentenced under subsection (1). We therefore affirm Rogers’s sentence under § 61-8-1008(2), MCA. ¶27 4. Whether the written judgment must be corrected to award the proper credit for time served and lawful statutory surcharges, and whether the District Court lacked statutory authority to impose the audit-hearing provision as part of Rogers’s sentence. ¶28 First, on appeal, the State concedes this matter should be remanded to amend Rogers’s jail credit from 201 days to 291 days for time served and reduce the felony statutory surcharge from $500 to $20. Because two $15 misdemeanor statutory surcharges remain, the total statutory surcharges should decrease from $530 to $50. The remaining issue is Rogers’s argument that the audit hearing provision is illegal. Although neither Rogers nor his counsel objected when the District Court imposed the audit hearing, Rogers alleges that the provision is a type of sentencing provision that no statute authorizes. We have authority to review this issue under State v. Lenihan, which permits appellate review of a criminal sentence alleged to be illegal or to exceed statutory authority even when the 12 defendant did not object at the time of sentencing. State v. Lenihan, 184 Mont. 338, 342-43, 602 P.2d 997, 999-1000 (1979). The District Court did not impose the audit-hearing provision as a condition of Rogers’s suspended sentence. It imposed the provision as part of the sentence itself. Rogers’s claim falls within Lenihan because he alleges that the District Court imposed a sentencing provision “of a type or character not authorized by statute,” rather than challenging the reasonableness or propriety of an authorized sentencing condition. State v. Thibeault, 2021 MT 162, ¶¶ 9-10, 404 Mont. 476, 490 P.3d 105. ¶29 A sentencing court’s authority is defined and constrained by statute, and a court cannot impose or modify a sentence or sentencing provision without statutory authority. Thibeault, ¶ 10; City of Missoula v. Franklin, 2018 MT 218, ¶¶ 6, 10, 392 Mont. 440, 425 P.3d 1285; State v. Hirt, 2005 MT 285, ¶¶ 18-20, 329 Mont. 267, 124 P.3d 147. Here, the District Court imposed an audit hearing nine years from Rogers’s sentencing as part of Rogers’s sentence to review the status of fines and fees owed and any incomplete condition requirements. The written judgment included a requirement that Rogers appear personally in 2033. The District Court orally explained that the hearing would allow it to review Rogers’s compliance before the sentence ended so that any issues could be “considered and resolved.” ¶30 Rogers argues that no statute authorizes this freestanding judicial compliance hearing. Section 46-18-201(4)(p), MCA, authorizes a sentencing court to impose reasonable restrictions or conditions during the suspended portion of a sentence. That authority does not resolve the issue here because the District Court did not impose the audit 13 hearing as a restriction or condition governing Rogers’s conduct during the suspended portion of his sentence. Rather, the provision creates a future judicial proceeding at which the court intends to review and resolve unspecified compliance matters. The structure of the judgment confirms that distinction: The District Court placed the audit-hearing provision under a separate heading after the thirty-three conditions of suspension, the reasons for sentence, and the statutory notice. The catchall authority to impose reasonable conditions does not authorize a court to create a separate future judicial proceeding or reserve continuing authority over a final sentence. ¶31 A sentencing court may exercise continuing authority over a criminal sentence only as authorized by statute. Gilbert v. State, 2002 MT 258, ¶ 17, 312 Mont. 189, 59 P.3d 24. In Hirt, we likewise held that a sentencing court could not reserve authority to revisit a financial obligation at future hearings without statutory authorization. Hirt, ¶¶ 18-20. Neither the judgment nor the State identifies, and we have found no statute authorizing, a district court to require a defendant to return years later for a general review of whether he has complied with financial obligations and other sentencing conditions. The Legislature instead has provided specific procedures for later judicial action, including proceedings to revoke a suspended sentence under § 46-18-203, MCA, and proceedings to correct a judgment under § 46-18-116, MCA. The State’s observation that the District Court announced the audit hearing during the oral sentence does not establish its legality. It establishes only that the hearing became part of the sentence rather than a later addition to the written judgment. By ordering Rogers to return so that the court could “consider and resolve” unspecified compliance issues, the District Court purported to retain continuing 14 authority through a proceeding for which neither the court nor the State identifies statutory authorization. Because a sentencing court has only the sentencing authority the Legislature has conferred, the audit-hearing provision exceeded the District Court’s statutory authority. Accordingly, we remand with instructions to strike the audit-hearing provision from the written judgment. CONCLUSION ¶32 The District Court correctly admitted the blood-test result because the blood draw complied with § 61-8-1019, MCA, and correctly relied on the certified driving record as competent proof of Rogers’s disputed 1995 DUI conviction. We affirm Rogers’s convictions and the District Court’s determination that the State proved the 1995 conviction. In a companion Opinion issued today in DA 24-0252, we affirm the predicate fourth-offense conviction and sentence arising from DC 22-62. Because that predicate sentence remains valid, we affirm Rogers’s sentence under § 61-8-1008(2), MCA. ¶33 The District Court erred when it included an audit hearing provision in Rogers’s sentence without statutory authority to do so. On remand, the District Court shall strike the audit-hearing provision from the written judgment and award Rogers the 291 days of credit for time served that it orally pronounced, together with any additional credit required by law. The District Court also shall correct the statutory surcharges consistent with § 46-18-236(1)(b), MCA. Because the District Court suspended the felony fine in full, the felony surcharge is $20, and the total statutory surcharges are $50. ¶34 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion. 15 /S/ KATHERINE M. BIDEGARAY We Concur: /S/ CORY J. SWANSON /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ INGRID GUSTAFSON 16